ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

LOUIS R. FILION

Dominique Boucher, for the Applicant

Applicant

• and -

GHISLAINE IVES

No one appearing for the Respondent

Respondent

COURT FILE NO.: FS-08-16179-0001

DATE: 20150113

HEARD: January 13, 2015

D E C I S I O N O N M O T I O N

WILCOX, J.

[1] The Applicant brought a motion regarding the final order dated December 16, 2011 in this matter. That order was a decision on costs.

[2] The court had issued a decision dated November 24, 2011 on the merits of a family law case that was heard over five days in October 2011. That decision also invited costs submissions, which led to the December 16, 2011 order requiring the Respondent to pay costs of $28,000 to the Applicant.

[3] The Applicant’s motion is referred to as a motion to change. However, the usual motion to change documents under rule 15 were not filed. Instead, a Form 14(b) motion form supported by a Form 14(a) affidavit was filed. This is appropriate in the circumstances. The motion explicitly relies on rule 25(19)(c) of the family law rules. It provides that the court may, on motion, change an order that needs to be changed to deal with a matter that was before the court but that it did not decide. Family law rule 25(20) provides that rule 14 applies to such motions. Under rule 14(6)(a), a case conference is not required before dealing with the motion. None was held in this instance.

[4] The motion was heard by teleconference which is allowed by rule 14(8). The Applicant and his counsel Dominique Boucher were the only participants.

[5] Service of the motion documents was effected on the Respondent on December 17, 2014 by Facebook message and by email. This is irregular. Ms. Boucher explained that the Respondent would not cooperate to reveal her location and employers and family members could not or would not give her location. A process server had tried to serve the Respondent at the last address that the court had on file for her, but was unable to. A neighbour said that she had not been seen in six to seven months. She was thought to be in Sturgeon Falls or North Bay. However, the process server knew someone who the Respondent had responded to the Facebook messages of, indicating that she lived in Toronto, but not saying exactly where. Ms. Boucher’s office had used the same Facebook address to message the Respondent. Also, there had been no response to the email to say that it had not gone through. Ms. Boucher expressed confidence that service had been effected in this way.

[6] In the circumstances, the court is satisfied that the motion documents have come to the attention of the Respondent or would have if she had not been evading service by keeping others ignorant of her whereabouts, and makes an order approving of service.

[7] The motion sought an amendment to the December 16, 2011 order to clarify what portion of the $28,000 costs award is related to support issues. The Applicant’s affidavit indicates that:

• the costs award has not been paid
• the Respondent has filed a Consumer Proposal in which she listed the costs as an unsecured debt
• the entire costs award is subject to being extinguished under the Consumer Proposal
• a portion of the costs award would survive if it was attributable to support issues
• most of the costs award should be deemed to relate to time spent dealing with support issues because most of the evidence at trial related to those.

[8] I heard the trial, considered the evidence and produced the decision on the substantive issues in this case over three years ago. So, it is difficult to recall with precision the portion of the time and effort that went into the case that related to support issues rather than to other issues. However, reading the decision makes it apparent, and my recollection is, that the bulk of the case was about support. Therefore, I find it appropriate to apportion 90 percent of the costs award to the support issues, being $25,200.

[9] The Applicant’s counsel raised in the hearing the issue of how the Applicant would recover the costs from the Respondent, as her location and income are unknown. Set off had been used in the judgment made after trial, at least in part because of a lack of confidence that the Respondent would pay her debts. Indeed, as indicated, the costs award remained outstanding in full. The Applicant indicated that he still pays over $4,000 per month in support to the Respondent which could be set off against, and that the Respondent’s financial circumstances have been improved by the bankruptcy which had relieved her of some debts but cost him about $20,000 in lost set offs. A set off of $400 per month was suggested.

[10] In the circumstances, the costs owed by the Respondent to the Applicant shall be paid at the rate of $400 per month by setting off that payment against the support being paid by the Applicant to the Respondent.

[11] No costs were sought on this motion. Each side shall bear its own costs.

Justice J.A.S. Wilcox

Released: January 13, 2015